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(as in the case of a lost Will, or a Will destroyed unduly or sine animo revocandi (a)) probate might have been granted of the Will itself, as contained in the draft and the depositions of the witnesses.
It has been already observed, that although a Will made Effect of re- by a widow before or during coverture, will not revive by publication by å widow :
the mere circumstance of her husband's death, yet if she
republish it, it will become valid (b). So if, at any time by an infant
before the statute of Victoria came into operation, an infant after attaining majority : having attained the age of fourteen, if male, or twelve, if a
female, by approval or recognition, or any other means republished a Will, which he or she made before arriving at those ages, it was thereby made effectual to all intents and
purposes (c). Likewise, although if the testator make his by a person Will while non compos, and afterwards recover his underformerly of
standing, the Will does not thereby obtain any force or mory, who has recovered his
strength (d); yet if he should, after having regained a sound understanding state of mind, republish the Will made during his former
insanity, it would doubtless become a valid Will.
(a) See post, Pt. 1. Bk. Iv. Ch.
(c) Swinb. Pt. 11, s. 2, pl. 8. Herbert v. Torball, 1 Sid. 162.
(d) Swinb. Pt. 2, s. 3, pl. 2. Godolph. Pt. 1, c. 8, pl. 2.
BOOK THE THIRD.
OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE
OR REFUSAL OF THE OFFICE.
THE word Executor, taken in its largest sense, has three acceptations : for there is, 1. Executor a lege constitutus, and that is the Ordinary of the diocese : 2. Executor ab Episcopo constitutus, or Executor dativus, and that is he who is called an administrator to an intestate : 3. Executor a testatore constitutus, or Executor testamentarius, and that is he who is usually meant when the term “Executor" is used (a).
The proper term in the civil law, as to goods, is heres testamentarius (l); and executor, said Lord Hardwicke, is a barbarous term unknown to that law (c).
An executor, as the term is at present accepted, may be defined to be, The person to whom the execution of a last Will and Testament of personal estate is, by the testator's appointment, confided (d). “To appoint an executor,” says Swinburne (e), “is to place one in the stead of the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts, and performance of his Will.”
The bare nomination of an executor, without giving any legacy, or appointing anything to be done by him, is sufficient to make it a Will, and as a Will it is to be proved (f).
(a) Godolph. Pt. 2, c. 1, s. 1. Atk. 304. Swinb. Pt. 6, s. 1. Wentw. Off. (d) 2 Black. Comm. 503. FarEx. c. 1.
rington v. Knightly, 1 P. Wms. (6) Godolph. Pt. 2, c. 1, s. 1. 548, 549. Toller, 30. Swinb. Pt. 6, s. 1, pl. 4.
(e) Swinb. Pt. 4, s. 2, pl. 2. (c) Androvin v. Poilblanc, 3 (f) Godolph, Pt. 2, c. 5, s. 1.
CHAPTER THE FIRST.
WHO IS CAPABLE OF BEING AN EXECUTOR.
Who may be GENERALLY speaking, all persons, who are capable of an executor.
making Wills, and some others besides, are capable of being made executors (a). From the earliest time it has been a rule, that every person may be an executor, saving such as are expressly forbidden (b).
It seems to be admitted that the king may be constituted executor ; in which case he appoints such persons as he shall think proper to officiate the execution of the Will, against whom such as have cause of action, may bring their suits : also the King may appoint others to take the accounts of such executors (c). Thus, Katherine, Queen Dowager of England, mother of Henry the Sixth, made her last Will and testament, and thereof constituted King Henry the Sixth her sole executor: Whereupon the King appointed Robert Rolleston, keeper of the great wardrobe, John Merston, and Richard Alreed, esquires, to execute the said Will, by the oversight of the Cardinal, the Duke of Gloucester, and the Bishop of Lincoln, or two of them to whom they should account (d).
Doubts have been entertained whether a Corporation Coi'porations. aggregate can be executor; principally because they cannot
prove a Will, or at least cannot take the oath for the due execution of the office (e). But there are authorities in favour of the capability (f); and it is said to be now
(a) 2 Black. Comm. 503.
(e) 1 Black. Comm. 477. Com.
are stated to be : 1st, Because they cannot be feoffees in trust, to others' use : 2dly, They are a body framed for a special purpose.
(f) Swinb. Pt. 5, s. 9. Godolph. Pt. 2, c. 1, s. 1. 1 Roll. Abr. tit. Executors (T) 7, citing 12 E. 4,9, b.
settled, that on their being so named, they may appoint persons styled Syndics, to receive administration with the Will annexed, who are sworn like other administrators (). No doubt appears ever to have been entertained, but that a corporation sole may be executor (1). Where a testator in A partnership
Firm. India nominated his brother, and “Messrs. Cockerell and Co., East India agents, London," and one A. B., to be his executors, and before his death the firm of Cockerell and Co., which consisted of four members, had been dissolved, Sir H. Jenner Fust held that the appointment was not of the firm collectively, but of the persons composing it individually, and that each of the members was entitled to be joined in the probate with the other executors (i).
It seems agreed that by our law an alien, or one born out Aliens. of the King's allegiance, may be an executor (k): though by the civil law he cannot, unless so appointed in a military testament (I). With respect to alien enemies, "it has long been doubted,” says Lord C. B. Gilbert, in his history of the C. P. (m)," whether an alien enemy should maintain an action as executor: for on the one hand it is said, that, by the policy of the law, alien enemies shall not be admitted to actions to recover effects, which may be carried out of the kingdom to weaken ourselves and enrich the enemy, and therefore public utility must be preferred to private convenience; but, on the other hand, it is said that those effects of the testator are not forfeited to the King by way of reprisal, because they are not the alien enemy's, for he is to recover them for others; and if the law allows such alien enemies to possess the effects, as well as an alien friend, it must allow them power to recover, since in that there is no difference, and, by consequence, he must not be disabled to sue for them; if it were otherwise it would be a prejudice to
(9) 3 Bac. Abr. by Gwillim, p. 5, (14) Caroon's case, Cro. Car: 8. tit. Executors, A. 2. Toller, 30, 31. Godolph. Pt. 2, c. 6, s. 1.
(1) Godolph. Pt. 2, c. 6. Wentw. (1) Godolph. Pt. 2, c. 6, s. 2. Off. Ex. p. 39, 14th edit.
(m) P: 166. 3 Bac. Abr. 6, tit. (i) In the goods of Fernie, 6 Executors, A. 4. Notes of Cas, 657:
the King's subjects, who could not recover their debts from the alien executor, by his not being able to get in the assets of the testator" (n).
But now, on declaring war, the king usually, in the proclamation of war, qualifies it, by permitting the subjects of the enemy resident here, to continue, so long as they peaceably demean themselves; and without doubt, such persons
(n) It is said in Toller, pp. 33, 34, Richfield r. [dall, (19 Car. II.,) that, although the cases are not Carter, 48, 191, where the Court uniform, yet it seems clear on the agreed that an action by an alien whole that alienage, with a relation enemy, as executor, lies: and Bridgto a hostile country, accompanied man, C. J., said he remembered Sir with residence abroad, or residence Stephen Le Sure's case, 11 Jac. I., here without the king's permission, that any alien whatsoever may be express or implied, clearly works a executor. The last case on the disability. It may, however, be subject is Villa r. Dimock, (5 W. remarked, without presuming to & M.) Skinner, 370, which was an controvert this position, that the action brought by an executor, fur weight of authorities does not ap- work and labour, and the plea was, pear to be in favour of it. The that both the testator and executor earliest case on the subject is an were alien enemies, born at such a anonymous one (probably it was place, under the obedience of the Pascatia de Fountain's case, men- French king; to this the plaintiff tioned in Wentworth, p. 35, 14th demurred and had judgment, on edit.) decided in 31 Eliz., and re- the ground that it was not shown ported in Cro. Eliz. 142, and Owen, that the testator did not die before 45: The action was debt by an the war; and that the plaintiff executor; and the plea, that the might be executor, and the action plaintiff was an alien, born at Ghent attach in him before the war, and under the allegiance of the king of then being dead before he became Spain, the queen's enemy; and an alien enemy, the testator might it was held a good plea. This is have an executor; and the action certainly a direct authority upon being in auter droit, it should be the point, but it seems the only maintained. The other cases cited one in favour of the disability: all by Sir S. Toller, it is submitted, the succeeding decisions are uni- with deference, do not apply; informly in favour of the executor's asmuch as they merely decide the capacity. Thus, in Watford v. general question as to suits by alien Masham, (38 Eliz.) Moor. 431, and enemies : whereas, the present inBrocks 1. Phillips, (41 Eliz.) Cro. quiry is, whether, assuming an Eliz. 684, (also cited by the Court alien enemy to be generally incapas adjudged, in Caroon's case, Cro. able of suing proprio jure, he may Car. 9,) the same plea, under the not still sue in auter droit, as exesame circumstances, was held bad cutor, just as persons attainted or on demurrer. The next case is outlawed may.